Adoption of J.J.B., Matter of
| Decision Date | 30 March 1995 |
| Docket Number | No. 21864,21864 |
| Citation | 119 N.M. 638,1995 NMSC 26,894 P.2d 994 |
| Parties | In the Matter of the ADOPTION OF J.J.B., a minor. Carla Ann ROTH and Kyle David Franz Roth, Petitioners-Petitioners, v. Edward BOOKERT, Respondent-Respondent. |
| Court | New Mexico Supreme Court |
This case involves the contested adoption of a child placed for adoption by his mother without the knowledge of the child's father from whom she was separated. The case came to trial only after considerable delay, and after the child had lived for over one and one half years in the home of the couple seeking to adopt him. During this period of time the father had been able to secure only limited visitation with the child. After a trial on the merits, the district court concluded that the child had bonded with the couple seeking to adopt him and that it was in the child's best interest to remain with that couple. As a result, the court terminated the father's parental rights under New Mexico's "presumptive abandonment statute," NMSA 1978, Sec. 32-1-54(B)(4) (Repl.Pamp.1989), repealed by 1993 N.M.Laws, ch. 77, Sec. 234(A) (recompiled at NMSA 1978, Sec. 32A-4- 28(B)(3) (Repl.Pamp.1993)); see also NMSA 1978, Sec. 32A-5-15(B)(3) (Repl.Pamp.1993).1
The Court of Appeals reversed, stating that the record did not support a finding that the father was unfit, and that termination of parental rights on grounds of the child's interests alone, absent a showing of parental unfitness, fails to satisfy constitutional due process. In re Adoption of J.J.B., 117 N.M. 31, 39, 868 P.2d 1256, 1264 (Ct.App.1993). We granted certiorari, 117 N.M. 121, 869 P.2d 820 (1994), and now hold that: (1) no separate showing or finding of unfitness is required for the termination of parental rights under Section 32-1-54(B)(4); (2) the presumption of abandonment established by the conditions set forth in Section 32-1-54(B)(4) may be rebutted by showing that a parent lacks responsibility for the disintegration of the parent-child relationship; and, (3) because the record in this case uniformly indicates that the father bore little, if any, responsibility for the disintegration of the parent-child relationship, any presumption of abandonment that arose was rebutted as a matter of law. Although we overrule the Court of Appeals in its treatment of the presumptive abandonment statute, we affirm its judgment on other legal grounds.
Because this case involves the involuntary termination of parental rights, and because there are considerable discrepancies in the briefs submitted by the parties regarding certain important events, we review the factual testimony and proceedings below in some detail.
Edward Bookert and Anna Medina lived together for about ten years but never married. The couple had two daughters, now fourteen and five years old, and one son, J.J.B., now four. Bookert is named as the father on each of their birth certificates. During the ten years the couple lived together, Bookert worked to support the family. Medina, for the most part, worked only in the home caring for the children.
In August 1990, when J.J.B. was about four months old, the family was having serious financial problems. For some time Bookert had been unable to find employment that paid more than $4.25 per hour and their cash income was less than $600 a month. They supplemented this income with food stamps. Bookert, hoping to find a better paying construction job, drove with the entire family to Laughlin, Nevada. He failed to quickly find a job in Laughlin, however, and within three days the family drove to Tucson, Arizona, where Bookert had a brother. They decided to stay and rented an apartment. Bookert found work at a hotel doing maintenance work and driving a shuttle van.
Medina was unhappy in Tucson and her relationship with Bookert deteriorated. After a few months she wanted a separation and to return to Albuquerque. Bookert sought to dissuade her from going but eventually he acquiesced with her desire to leave. He purchased plane tickets for Medina and the children, and gave her about $100 in cash. She also took the family's supply of food stamps, worth about $300. On November 14, 1990, Medina and the children flew to Albuquerque and stayed in her father's apartment. Bookert called that evening to make certain that they had arrived. Shortly thereafter, he sent packages that contained clothing and other personal items that were left behind in Tucson.
About two weeks later Bookert lost his job. On December 6, 1990, he returned to Albuquerque and drove to Medina's residence. He brought more of the family's personal items and gave Medina additional food stamps worth about $75. He spent about half a day at the apartment playing with the two younger children and waiting for the eldest child to come home from school. However, Medina was angry that Bookert hadn't called them since the night they had first arrived, and the couple resumed their arguing. Eventually he left when Medina told him she didn't want him around. Bookert testified that he had no place to stay in Albuquerque because his trailer in nearby Tijeras Canyon, where the family had lived previously, had been repossessed. He drove to Hobbs to stay with his mother while he looked for work. He told Medina he would return in the latter part of December.
During the next few weeks he called the family by telephone from Hobbs on a number of occasions. The oldest daughter also called him. Medina spoke with him at first, but eventually she refused to do so and thereafter he spoke only with the children. As Christmas approached he sought to have the oldest daughter fly to Hobbs for the holidays and then afterward return with him to Albuquerque, but Medina refused to let her go. For Christmas he sent the children gifts, including a bicycle for the oldest girl. Bookert testified that he sent $40 to Medina during this period of time, but Medina denied receiving it.
About the first of the year Medina decided to place J.J.B. for adoption. She testified2 that she was upset with Bookert because they were breaking up, and that she couldn't handle three children. She stated that she didn't tell Bookert what she was planning to do because she was mad at him. On January 4, 1991, she contacted La Familia Adoption Agency (La Familia) and authorized it to place the child for adoption. Medina relinquished her parental rights to the agency and gave the agency the child that same afternoon. She informed Gerald Ortiz y Pino, her contact person at the agency, that Bookert had abandoned the family.
That same day, January 4, Ortiz y Pino called Bookert in Hobbs. Ortiz y Pino informed him that Medina had delivered his son, J.J.B., to the agency and authorized the agency to place the child for adoption. Ortiz y Pino wanted to know if Bookert would consent to the adoption. Bookert testified that his reaction was shock and disbelief. He told Ortiz y Pino that he would not agree to the adoption and that he would be coming to Albuquerque in a day or two to get the boy.
Bookert's son, J.J.B., was placed by La Familia with prospective adoptive parents, Carla and Kyle Roth (the Roths), on the same day that Medina relinquished her parental rights to the agency, Friday, January 4, 1991. Ortiz y Pino testified that the child was placed with the Roths because they were willing to take the child that same day under the cloud of a possible challenge by the boy's father.
Bookert left Hobbs the next day, January 5, and arrived in Albuquerque early Sunday morning. He testified that he called Ortiz y Pino on Monday, let him know that he was there to pick up the boy, and made an appointment to meet Ortiz y Pino the next day, January 8, 1991. When they met the next day Ortiz y Pino refused to turn over the boy, and he advised Bookert to hire an attorney if he wished to contest the adoption.
The testimony of Ortiz y Pino is consistent with that of Bookert's on this point: that Bookert specifically and repeatedly requested that the child be immediately turned over to him.3 When asked if Bookert requested on January 4 that the child be given to him, Ortiz y Pino testified: Ortiz y Pino further testified that when Bookert came to Albuquerque,
On January 9, 1991, Ortiz y Pino wrote Bookert a letter that reviewed their conversations of January 4, 7, and 8. The letter acknowledged that Bookert refused to cooperate with the adoption, and that Bookert had asserted that he wished to bring the boy up himself, possibly with the help of Bookert's mother in Hobbs.4 Ortiz y Pino again advised Bookert to seek legal advice. Bookert was also told that if he decided to cooperate with the adoption plan, he should call and arrange to relinquish his parental rights. Ortiz y Pino...
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